New Hampshire did something extraordinary the other day. The Granite State decided to take juries and the work they do seriously. As of January 1, 2013, criminal defense lawyers will be permitted to inform juries that they are to determine not just the facts in a given prosecution, but whether the law has been correctly applied to the controversy at hand. In other words, New Hampshire has adopted jury nullification.
We treat the administration of justice as though it were piece work fit for an assembly line in Connecticut. Present juries with evidence. Have them find the facts. And then shuffle jurors out the back door before the real work gets done in the overwhelming majority of cases in which the state proves guilt. We demand that defendants be held accountable by jurors but then deny jurors any meaningful chance to hold the state accountable. This is the idiot’s version of justice, endorsed and heartily defended by those who’d rather not have the work they do scrutinized too closely by the very people they claim to serve.
Jury nullification permits ordinary people to utter a simple two word question of the state: “So what?” Yes, the defendant broke one of the endless laws that give prosecutors the discretion to call just about anyone of us a criminal at some point in our lives. But does the very community the prosecution claims to serve really think the conduct prosecuted is worth all the fuss?
Who holds the state accountable in a criminal trial?
In Connecticut, prosecutors are given a free ride. The state selects the charges to prosecute. No judge or jury can second-guess that decision. Juries are told to find the facts in a given case. Judges then impose sentence, increasingly hemmed in by legislative determinations of mandatory minimum prison time. Some jurors are shocked to learn the consequences of a guilty verdict. Does the kid who sold a little crack really deserve 15 years in prison?
I once heard a wise judge worry about nullification. An unjust community will refuse to do justice, he said. Recall the difficult obtaining convictions in the deep south decades ago when civil rights workers were murdered.
I don’t have an easy answer to that observation. Juries can get it wrong, and, I suspect, they often do get it wrong. The question is in whom should we place our trust: a handful of folks selected at random, or the schizophrenic and disconnected activities of lawmakers, judges and prosecutors, each assembling a piece of justice’s puzzle and hoping to get it right more often than not? I’d rather gamble on a jury.
A sense of legitimacy springs from a people fully engaged and empowered to act. When we treat jurors like principled idiots, capable of finding a fact, but incapable of gauging the consequences of their acts, we hobble the very people we claim to serve. It is simply meaningless to tell ordinary people to take up their grievances regarding the criminal justice system at the polling place. We can vote but once every few years and then for folks who have the means and the inclination to serve as many masters as they can at once. My conscience is not for sale.
What about the fear of mob justice? Again, I worry less about that than I do about the governance of elites accountable to one another. Jefferson once said revolution was not to be feared, but embraced. Why not encourage a little revolt in the jury room from time to time? We can’t do much worse than the elites governing the criminal justice system as though it were a sweat shop.
Congratulations to New Hampshire. They are, indeed, living free.
Reprinted courtesy of the Connecticut Law Tribune.